Thursday, June 24, 2010

West Virginia Supreme Court closes a door on co-parent guardianship...and never identifies the relationship of the two women involved

If you use the words "lesbian" or "same-sex couple" to search for court opinions on lesbian couples raising children, you would miss In re Richard P., handed down earlier this month by the West Virginia Supreme Court. In that case, two women, Cary and Jennifer, filed a petition to appoint Cary as the legal guardian of Richard and Devon, the two children Jennifer bore when she was married to Richard A. The opinion states that the two women reside together with the children, but it does not characterize their relationship in any way.

The case is important as a reminder of the large number of women who become mothers while in heterosexual marriages and later leave those marriages and come out. Even though we talk primarily about the children that lesbian couples plan for together, especially the legal issues involved in those cases, more same-sex couples raising children are like Cary and Jennifer -- raising a child born to one mom while she was married to a man.

In this case, the children's father was a particularly despicable sort. After being charged with sexually molesting his sons, he pled guilty to a lesser offense of "dissemination of matter harmful to minors." He was later convicted of molesting the 13-yr-old daughter of his girlfriend. He was not involved in this litigation.

Cary and Jennifer wanted Cary to adopt the children, but as an "interim measure" they sought guardianship for Cary so that she could make medical and educational decisions about the children, and to create stability for the children in case Richard tried to reassert parental rights. It's not clear why they were not filing for the adoption, but perhaps they were apprehensive about the home study that would have been required or they are in a West Virginia county that has not granted second-parent adoption. Also, although they stated that the father's parental rights had been terminated in Indiana, there was no evidence of this in the record, and the couple may not have wanted to give him notice of an adoption proceeding. The couple had concrete examples of times Jennifer was unavailable and third parties refused to allow Cary to make decisions concerning the children's medical care. In one instance, Cary was not allowed to visit Richard when he was hospitalized.

The record included a report about 13-yr-old Richard's psychological problems that referred to Cary and Jennifer as "nurturing parents." (emphasis mine). The couple referred to Cary as a "psychological parent," and the court specifically says that both women have "acted as parents" to the boys. At one point the opinion notes that "because Jennifer often travels for work, while Cary stays at home, Cary is frequently the parent who first responds to medical and other emergencies in the family." (emphasis mine). This matter-of-fact acknowledgement of Cary's role comes with absolutely no mention or discussion of the nature of Jennifer and Cary's relationship with each other.

The court concluded that it lacked the statutory authority to grant the couple's petition. A guardianship would have been proper if Jennifer was relinquishing parental authority or if she was gravely ill. The court was sympathetic to the needs of the family and noted that the couple's understandable goals could be met by executing a power of attorney. To clarify the law, the court explicitly stated that a power of attorney could be used to give "medical, educational, and other legal decisionmaking authority...to another adult." The court also noted that Jennifer could name Cary a "testamentary guardian" in her will and that a newly enacted statute, the "Caregivers Consent Act," would allow the creation of an affidavit that would give Cary the ability to consent to health care for the children. The court thus thought the couple could achieve all their objectives using laws other than the guardianship statute.

I read this court ruling in the BNA Family Law Reporter. Their headline for the opinion reads,"Mother and Friend May Not be Appointed as Children's Coguardians." I was intrigued, and I actually expected that the case would involve friends raising a child together. But it sure doesn't read that way. Given the use of the term "parent" to describe Cary, I think a better headline would have been "Mother and Co-parent..."

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About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.